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Exhibit 10.23
AXCAN HOLDINGS INC. EMPLOYEE LONG TERM INCENTIVE
PLAN
Adopted June 3, 2008 (the " Effective
Date ")
1. Purpose .
The purpose of this Axcan Holdings Inc. Employee Long Term
Incentive Plan (the " Plan ") is to aid the Company (as
defined herein) in providing a financial incentive to those
Employees (as defined herein) serving in the job level designated
on Appendix A hereto, aligning the interests and motivations of
such Employees with the economic goals of the Company and its
subsidiaries.
2. Definitions .
As used in this Plan, the following capitalized terms shall have
the following meanings:
(a) " Affiliate " shall mean, with respect to any entity,
any other corporation, organization, association, partnership, sole
proprietorship or other type of entity, whether incorporated or
unincorporated, directly or indirectly controlling or controlled by
or under direct or indirect common control with such entity.
(b) " Axcan " shall mean Axcan Pharma Inc., a wholly
owned subsidiary of the Company, and its subsidiaries.
(c) " Board " shall mean the Board of Directors of the
Company.
(d) " Calculation Date " shall have the meaning set forth
in Section 4(a).
(e) " Cause " shall mean, when used in connection with
the termination of a Participant’s Employment, the
termination of the Participant’s Employment with the Company
and all Affiliates on account of (i) gross negligence or
willful misconduct of the Participant in connection with the
performance of his or her duties; (ii) the Participant’s
conviction of (or pleading guilty or pleading no contest or nolo
contendere to) a felony or comparable crime in any jurisdiction
that does not classify crimes using "felony," other than minor
traffic offenses and other minor offenses that are not inconsistent
with the Company’s reasonable expectations of a person
occupying the Participant’s position; (iii) the
Participant’s unauthorized removal, use or disclosure of the
Company’s or any Affiliate’s Confidential Information
that could reasonably be expected to cause harm to the Company;
provided , that the Participant shall, to the extent an
unauthorized removal is reasonably susceptible to cure, be given a
reasonable opportunity, not to exceed thirty (30) days, after
written notice by the Company to the Participant to cure such
removal of Confidential Information; (iv) the performance by
the Participant of any act or acts of dishonesty in connection with
or relating to the Company’s or its Affiliates’
business or the misappropriation (or attempted misappropriation) of
any of the Company’s or any of its Affiliates’ funds or
property; (v) a
material breach of any of the Participant’s
obligations under any agreement entered into between the
Participant and the Company or any of its Affiliates that is
material to the employment relationship between the Company or any
of its Affiliates and the Participant or the relationship between
the Company and the Participant as investor or prospective investor
in the Company; provided , that the Participant shall, to
the extent a breach is reasonably susceptible to cure, be given a
reasonable opportunity, not to exceed thirty (30) days, after
written notice by the Company to the Participant to cure such
breach; or (vi) a breach of the Company’s policies or
procedures, which breach causes or could reasonably be expected to
cause harm to the Company or its business reputation;
provided , that the Participant shall, to the extent a
breach is reasonably susceptible to cure, be given a reasonable
opportunity, not to exceed thirty (30) days, after written
notice by the Company to the Participant to cure such
breach.
(f) " Closing Date " shall mean February 25,
2008.
(g) " Code " shall mean the Internal Revenue Code of
1986, including the regulations promulgated thereunder and any
guidance issued by the U.S. Treasury Department with respect
thereto, as amended.
(h) " Committee " shall mean the Compensation Committee
of the Board of Directors of the Company or any committee the Board
of Directors may designate from among its members to administer
this Plan. In the event the Company does not have a Compensation
Committee and the Board has not designated any other committee,
references in the Plan to "Committee" shall be deemed to be
references to the Board.
(i) " Common Stock " shall mean the common stock of the
Company, par value US$0.01 per share.
(j) " Company " shall mean Axcan Holdings Inc.
(k) " Confidential Information " shall have the meaning
set forth in Section 6.
(l) " Date of Issue " shall mean, for each fiscal year in
which an Eligible Employee is designated as a Participant entitled
to a Grant, in accordance with the terms hereof, the first business
day of such fiscal year or, if later, the date such Eligible
Employee commences Employment.
(m) " EBITDA " shall mean, with respect to a particular
fiscal year, earnings before interest, taxes, depreciation and
amortization, as determined by the Company.
(n) " Eligible Employee " shall mean any full-time
Employee hired prior to the first day of the third quarter of the
fiscal year in which the Date of Issue occurs serving in a job
level that is listed on Appendix A, subject to the
Committee’s right, in its sole discretion, to determine that
one or more individuals in a specified job level, or that one or
more job levels, is not eligible to participate in the Plan for one
or more years.
(o) " Employment " shall mean employment with Axcan or
any Affiliate. " Employee " and " Employed " shall
have correlative meanings.
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(p) " Exercise Date " shall have the
meaning set forth in Section 5(a).
(q) " Exercise Price " shall mean the Fair Market Value
of a share of Common Stock on the Calculation Date.
(r) " Fair Market Value " shall mean (i) prior to
the existence of a Public Market, the fair value per share of
Common Stock determined by the Board in good faith and based upon a
reasonable and appropriate valuation method, taking into account
any relevant factors determinative of value; or (ii) following
the occurrence of a Public Market, (A) the closing price on
such day of a share of Common Stock as reported on the principal
securities exchange on which shares of Common Stock are then listed
or admitted to trading or (B) if not so reported, the average
of the closing bid and ask prices on such day as reported on the
National Association of Securities Dealers Automated Quotation
System or (C) if not so reported, as furnished by any member
of the National Association of Securities Dealers, Inc. ("
NASD ") selected by the Board. The Fair Market Value of a
share of Common Stock as of any such date on which the applicable
exchange or inter-dealer quotation system through which trading in
the Common Stock regularly occurs is closed shall be the Fair
Market Value determined pursuant to the preceding sentence as of
the immediately preceding date on which the Common Stock is traded,
a bid and ask price is reported or a trading price is reported by
any member of NASD selected by the Board. In the event that the
price of a share of Common Stock shall not be so reported or
furnished, the Fair Market Value shall be determined by the Board
in good faith to reflect the fair market value of a share of Common
Stock.
(s) " Grant " shall mean a grant of a right to receive
Options with respect to each fiscal year in which the Participant
is an Eligible Employee. The value of a Grant shall be based upon
the Participant’s Target Award, adjusted based upon the
Company’s achievement of EBITDA in each fiscal year relative
to the Target EBITDA and subject to vesting as set forth herein.
Grants shall automatically be made on the Date of Issue to Eligible
Employees. The Committee may require that a Grant be conditioned
upon the Eligible Employee executing a Grant Agreement and
returning the executed Grant Agreement to the Company.
(t) " Grant Agreement" shall mean the agreement
evidencing a Grant and acknowledging a Participant’s
obligations under the Plan, in such form as the Committee may
determine from time to time.
(u) " Initial Majority Stockholder Shares " shall mean
the shares of the Company’s Common Stock issued to the
Majority Stockholders on or about the Closing Date, and shall
include any stock, securities or other property or interests
received by the Majority Stockholders in respect of such shares in
connection with any stock dividend or other similar distribution,
stock split or combination of shares, recapitalization, conversion,
reorganization, consolidation, split-up, spin-off, combination,
repurchase, merger, exchange of stock or other transaction or event
that affects the Company’s capital stock occurring after the
date of issuance. Initial Majority Stockholder Shares sold by the
Majority Stockholder to employees, consultants or directors of the
Company or its subsidiaries within the first six months following
the Closing Date shall not be counted for purposes of determining
whether a Liquidity Event has occurred, and, once sold, shall not
be deemed Initial Majority Stockholder Shares for purposes of this
Plan.
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(v) " Liquid Securities " shall mean
securities as to which the issuer of such securities has a "public
float value", within the meaning of Rule 100, equal to at least two
times the "public float value" of Axcan based upon the average
number of shares outstanding during its 2006 fiscal year and the
closing price reported on the Nasdaq Global Select Market, as
quoted on such exchange or system on March 15, 2007, as
reported in The Wall Street Journal .
(w) " Liquidity Event " shall mean a transaction, which
when aggregated, if applicable, with any other prior transaction
(whether or not related) results in the payment to the Majority
Stockholder of at least half of the Sponsor Price in cash with
respect to the Initial Majority Stockholder Shares, whether as the
result of sale consideration, dividends, distributions, redemption
proceeds or any other basis, as determined by the Board in good
faith; and (ii) any other transaction or series of
transactions (whether or not related) determined by the Board, in
its sole discretion, to constitute a "Liquidity Event." Initial
Majority Stockholder Shares sold by the Majority Stockholder to
employees, consultants or directors of the Company or its
subsidiaries within the first six months following the Closing Date
shall not be counted for purposes of determining whether a
Liquidity Event has occurred and, once sold, shall not be deemed
Initial Majority Stockholder Shares for purposes of the Plan.
(x) " Majority Stockholder " shall mean, collectively or
individually as the context requires, TPG Partners V, L.P., TPG FOF
V-A, L.P., TPG FOF V-B, L.P., TPG Biotechnology Partners II, L.P.,
and their respective affiliates.
(y) " Management Stockholders’ Agreement " shall
mean a management stockholders’ agreement substantially in
the form attached as Exhibit A hereto.
(z) " MoM " shall mean, following the occurrence of a
Liquidity Eve
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